Criminal Court Delays – The Jordan Decsion

The Canadian Charter of Rights and Freedoms provides all accused persons with the Right to be tried within a reasonable period of time. The last number of years have seen ever increasing delays within the Criminal Court system in Alberta and the rest of Canada. Budget conscious governments have postponed spending on the system, while at the same time the population in Alberta has increased. The system has become crowded and overburdened, with a shortage of Judges and courtrooms to hear cases. This has resulted in the setting of trials being delayed.

In July of this year, the Supreme Court of Canada provided their decision in the case of R. v. Jordan 2016 SCC 27. The case involved a dial-a-dope drug trafficking situation in British Columbia. It took 44 months to get the case to trial.

The majority of the SCC said that the current system, which had followed the case law from a 1990’s decision in R. v. Morin, had actually given rise to a ‘culture of delay and complacency towards it’. The Court now felt that it needed to develop a strategy to encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems.

The Jordan decision set a ‘presumptive ceiling’ for what is too long of a delay. The court set a ceiling of 18 months for matters to be heard in Provincial Court, and 30 months to be heard in a superior court (in Alberta, the Court of Queen’s Bench). The court did make it clear however, that delay attributable to the defence does not count towards the ‘ceiling’.

If a case does not get to trial prior to the ‘ceiling’, the burden is on the Crown to show that there have been ‘exceptional circumstances’, or the case is to be stayed. The court said that exceptional circumstances will be things that lie outside the Crown’s control in that they are both reasonably unforeseen or reasonably unavoidable, and they cannot be easily remedied.

This new case has so far led to some obvious positives in the system. Judges are now more forceful in urging the Crown to provide timely disclosure and avoiding unnecessary delays. Further, the Government of Canada has set out appointing several new Justices and our Provincial Government should soon be appointing new Judges as well. Time will tell if this new case truly does speed up our justice system.